THE BREXIT BEER CASE

On January 30, 2019, the EUIPO recently heard the case concerning the application for the trademark "Brexit." The case concerns the admissibility of the figurative sign "BREXIT" for "caffeinated energy drinks; beer" in Class 32.

The application was refused by the office for lack of distinctive character and contrary to public policy, as it was noted that the relevant public includes all consumers in the EU as they often encounter the term through the mass media and Internet .

Regarding the violation of public order or morality, the Grand Board found that the word "Brexit" denotes a sovereign political decision, which was lawfully taken, and has no negative moral connotation; it is neither an incitement to crime, nor an emblem of terrorism, nor a synonym for sexism or racism. The word itself does not express an opinion. The fact that part of the UK public may have been upset by a controversial democratic decision does not constitute a crime. The GB therefore concluded that the sign cannot be considered contrary to accepted principles of morality, in and of itself, nor when used as a trademark for the goods applied for.

 However, the term was, already at the filing date, so well known to consumers as the name of a historical and political event that it would not be prima facie associated with specific products from specific merchants. It can acquire distinctiveness only if consumers are sufficiently exposed to it in a commercial context. Furthermore, the colors and font are not capable of distracting the public's attention from the non-distinctive message conveyed by the word. The Union Jack-esque background accentuates this message. For the reasons stated above, the Grand Board rejected the application and the appeal.